I will going into foreclosure very soon.The mortgage has been transferred 4 to 5 times by mers as the mortgages were sold.My understanding is that new york law does not allow mers the right to foreclose ,transfer,etc and a bankruptcy judge eastern district just declared there transfers illegal about 2 months ago.I want to use this as a defense that they don't own the mortgage or note,but the law seems to be changing back and forth alot over this issue.
Recently the Appellate Division of the Second Department (intermediate appeals court of New York) ruled in BONY vs. Silverberg that under some circumstances, a mortgage transferred through MERS, without proof of the negotiation of the note by MERS may bar it from foreclosure. Whether you have this situation is a complex question that depends on a number of variables. Moreover, it is very, very easy for the bank to do an "end around" on this ruling if you do not perform the proper discovery. Accordingly, simply saying to a Judge that MERS is in the chain of title for the mortgage is not necessarily enough to defeat a foreclosure. You need to fully understand the implications of the Silverberg decision and also be prepared for the bank's counterarguments to the Court (the Bank and its attorney's are very aware of this decision and its implications and also how to defeat it.)
I would recommend that if you want to save you home, consult an attorney knowledgeable about this area of the law.
No attorney client relationship has been created by this answer.
3 lawyers agree
Real Estate Attorney
All you're going to do is waste time, and by doing so, costing yourself more money. If you really want to raise a defense based on this theory, be prepared to retain counsel and be prepared to spend thousands of dollars on litigation. But, maybe from a business perspective, this makes sense in your case.
I may be guessing or not licensed in your state. No atty/client relationship exists. I earn my living collecting points for "helpful" answers.
Debt Collection Attorney
Actually, each county treats MERS differently. Ultimately, if you don't pay the foreclosure will be completed. However, a lawyer may be able to delay sufficiently to serve its purpose and the cost to retain a lawyer to do so will likely be less than paying the mortgage.
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